where an instrument which, primâ facie, appears to be an exhibit, requires more formal proof, it cannot be received as one.1

For the same reason, a will of real estate cannot be proved vivâ voce, because, besides the mere execution of the will, the sanity of the testator must be established.2 But where a power is required to be exercised by a deed executed in the presence of, and attested by witnesses, the deed by which the power is exercised cannot be proved viva voce at the hearing of the cause. So where a book, in which the collector of a former rector had kept accounts of the receipts of tithes, was offered to be proved viva voce, it was rejected, because, besides proving the handwriting, it would be necessary to prove that it came out of the proper custody, and that the writer was the collector of the tithes.1

If a document is impeached by the answer of a defendant, it cannot be proved vivâ voce, on the part of the plaintiff, against such defendant. Thus, where the answer of one of the defendants in a cause insisted that a covenant was fraudulently inserted in a deed, the deed was not allowed to be proved viva voce against that defendant, although it might have been so proved against the other defendant, who had not impeached its authenticity.5

It is only, however, where the execution or the authenticity of a deed is impeached, that it cannot be proved vivá voce; if the va lidity of it only is disputed, it may be so proved."

1 Earl Pomfret v. Lord Windsor, 2 Ves. 472; Bloxton v. Drewit, Prec. in Cha. 64; Ellis v. Deane, 3 Moll. 63; Emerson v. Berkley, 4 Hen. & Munf. 441; Gresley Eq. Ev. (Am. ed.) 128. It is said not to be, strictly speaking, correct to say, that no questions, which will admit of a cross-examination, may be asked a witness thus proving exhibits; but the fact is, that the examination is restricted to three or four very simple points, such as the custody and identity of an ancient document produced by a librarian or registrar, the accuracy of an office-copy produced by the proper officer, the execution of a deed where the examinant is the attesting witness, the handwriting of a letter, or receipt, or promissory note, &c., &c. Gresley Eq. Ev. (Am. ed.) 126.

Where a minor is a party, the Court will not permit a witness to be examined vivâ voce at the hearing of the cause, to prove a deed or exhibit, which must be proved at the office, by an examination of the witness upon interrogatories. White v. Baker, 1 Irish Eq. 282.

* Harris v. Ingledew, 3 P. Wms. 93; Niblett v. Daniell, Bunb. 310; 2 Fowl. Ex. Pr. 188.

Brace v. Blick, 7 Sim. 619.

* Lake v. Skinner, 1 Jac. & W. 9.

Barfield v. Kelly, 4 Russ. 355; Mabur v. Hobbs, 1 Y. & C. Exch. Rep. 585; Hitchcock v. Carew, 1 Kay, Appx. 14.

• Attorney-General v. Pearson, 7 Sim. 303.

In the case of Rowland v. Sturges, the plaintiff in a foreclosure was allowed to prove by affidavit the mortgage deed under which he claimed, where it was neither admitted nor denied by the defendant.

3

It is necessary, in order to authorize the examination of a witness vivâ voce at the hearing of a cause, or by affidavit,2 that the party intending to make use of the exhibits should previously obtain an order for that purpose. This order may be obtained, by the party requiring it, by motion in Court without notice, or by petition to the Master of the Rolls; and it is often granted during the hearing of the cause; 5 in which case the cause will either be ordered to stand over for the purpose of enabling the order to be served and acted upon, or if the witness is in Court, it may be acted upon immediately.

6

The order, when drawn up, must describe the exhibits to be proved; and it is always made as of course, "saving all just exceptions."

The order being drawn up, passed, and entered, a copy thereof must be served, in the usual manner, upon the adverse solicitor, two days previous to the hearing of the cause.8

When the cause is called on, and the exhibit required to be proved, the original order and the exhibit described therein, together with the witness to prove the same, must be produced to the Registrar in Court, who will administer the usual oath; the examination, also, of the witness, as to the execution, &c., is performed by the Registrar.9

It may not be unnecessary to mention that no documents but those mentioned or described in the order can be thus proved at the hearing; and as the order saves just exceptions, all objections 1 2 Hare, 520. See, however, Jones v. Griffith, 14 Sim. 262. Clare v. Wood, 1 Hare, 341.

See Emerson v. Berkley, 4 Hen. & Munf. 441; Barrow v. Rhinelander, 1 John. Ch. 559; Gresley Eq. Ev. (Am. ed.) 126.

* Graves v. Budgel, 1 Atk. 444.

Bank v. Farques, Amb. 145.

Gresley Eq. Ev. (Am. ed.) 126. To authorize a party to produce, at the hearing, documentary evidence which is not made an exhibit before the examiner, nor distinctly referred to in the pleadings, the notice of intention to make use of such evidence should state sufficient of the substance of the document intended to be produced to enable the adverse party to see that it is evidence of some fact against him. Miller v. Avery, 2 Barb. Ch. 582.

Hind. 370.

8 Ibid.

9 Hind. 371.

which can be taken to the admissibility of the document as evidence may, then, be urged by the opposing party.

The attendance of an unwilling witness to prove an exhibit at the hearing, may be enforced by process of subpoena, which is to be obtained in the manner which will be hereafter pointed out with regard to ordinary subpænas ad testificandum;1 and must be in the following form:

66

Victoria, &c. To -, greeting. We command you, [and every of you,] that laying all other matters aside, and notwithstanding any excuse, you personally be and appear before our Lord High Chancellor, [or before his Lordship or Honor the Master of the Rolls, or Mr., one of the Masters of our High Court of Chancery, or before E. F. or G. H., Commissioners named in a commission issued to them for that purpose,] at such time and place as the bearer hereof shall by notice in writing appoint, to tes-. tify the truth according to your knowledge in a certain suit now depending in our High Court of Chancery, wherein [and others or another] are plaintiffs, and [and others or another] are defendants, on the part of the; in case of a subpæna duces tecum, add, and that you then and there bring with you and produce, &c.] And hereof fail not at your peril. Witness, &c." 2

A subpoena of this nature requires the same personal service as a subpoena to testify in other cases; and every circumstance to be observed in serving an ordinary subpæna ad testificandum, such as tender or payment of sufficient money to pay the expenses of the witness, &c., must be observed in serving this.3

The party who serves the subpoena must, at the same time that he serves it, deliver to the witness a notice in writing appointing the time and place for the witnesses' attendance; with respect to which, it is to be observed, that the time must be a reasonable time before the day fixed for the notice.

It may be noticed, in this place, that where one party has proved written documents in a cause, the other side has no right, upon that ground, to call for an inspection of them before the

1 A subpœna to examine a witness before a Judge in open Court, pursuant to the 39th section 15 & 16 Vict. c. 86, cannot issue without a direction from the Judge, or an order to be at liberty to examine viva voce at the hearing. 2 Order of May, 1845, Appx.

See post, Part III. Sect. 2.

hearing; because a party can have no right to see the strength of his adversary's case, or the evidence of his title, before hearing.1

PART III.-OF ORAL TESTIMONY.

SECTION I. Who may be Witnesses.2

II. Oral or unwritten testimony is that which is given by, or taken down from, the mouth of living witnesses.

All persons are competent to be witnesses in Equity, who are capable of being witnesses in trials at Law.3

With respect to the cases in which a witness is deemed incompetent to give any evidence at all, until recently, this subject was one of no small difficulty and complexity; but recent Acts have almost entirely obliterated the learning of ages, and it may now be laid down generally, that there are only two grounds on which evidence can be refused: 1st, Where the witness labors under a defect of understanding; 2nd, Where he refuses to take an oath, or, from defect of religious opinion, does not acknowledge its sanction.5

35.

4

1 Davers v. Davers, 2 P. Wms. 410; Hodson v. Earl of Warrington, 3 P. Wms.

A Judge cannot be a witness in a cause on trial before him. 1 Greenl. Ev. $364.

The rules of evidence are the same in Courts of Equity as in Courts of Law. Morrison v. Hart, 2 Bibb, 5; Lemaster v. Burckhart, 2 Bibb, 28; Dwight v. Pomeroy, 17 Mass. 303; Reed v. Clark, 4 Monroe, 20; Stevens v. Cooper, 1 John. Ch. 425; Baugh v. Ramsey, 4 Monroe, 137; Eveleth v. Wilson, 15 Mass.

109.

See 1 Greenl. Ev. § 365; Gresley Eq. Ev. (Am. ed.) 237; 1 Phil. Ev. (Cowen & Hill's ed. 1839,) 18, 19, notes (47), (48). As to the competency of deaf and dumb persons, see 1 Greenl. Ev. § 366; State v. De Wolf, Conn. 93;

Commonwealth v. Hill, 14 Mass. 207; 1 Phil. Ev. (Cowen & Hill's ed. 1839,) 19, and note (49). As to the competency of children, 1 Greenl. Ev. § 367; Gresley Eq. Ev. (Am. ed.) 237; 1 Phil. Ev. (Cowen & Hill's ed. 1839,) 19, 20, notes (50), (51), (52)..

Gresley Eq. Ev. (Am. ed.) 237, 238; 1 Greenl. Ev. § 368-370, and notes and cases cited; 1 Phil. Ev. (Cowen & Hill's ed. 1839,) 20-27, and notes.

It may be considered as now generally settled, in the United States, that it is not material whether the witness believes that the Divine punishment, which is the consequence of perjury, will be inflicted in this world or in the next. It is enough

The 6th & 7th Vict. c. 85, enacted, "That no person offered as a witness shall hereafter be excluded, by reason of incapacity from crime or interest, from giving evidence either in person or by deposition, according to the practice of the Court, on the trial of any issue joined, or of any matter or question, or on any inquiry arising in any suit, action, or proceeding, civil or criminal, in any Court, or before any judge, jury, sheriff, coroner, magistrate, officer, or person having by law or by consent of parties authority to hear, receive, and examine evidence, but that every person so offered, may and shall be admitted to give evidence on oath or solemn affirmation, in those cases where affirmation is by law receivable, notwithstanding that such person may or shall have an interest in the matters in question, or in the event of the trial of any issue, matter, question, or inquiry, or of the suit, action, or proceeding, in which he is offered as a witness; and notwithstanding that such person offered as a witness may have been previously convicted of any crime or offence; provided that this Act shall not render competent any party to any suit, action, or proceeding, individually named in the record, or any lessor of the plaintiff or tenant of premises sought to be recovered in ejectment, or the landlord or other person in whose right. any defendant in replevin may make cognizance, or any person in whose immediate and individual behalf any action may be brought or defended either wholly or in part, or the husband or wife of such persons respectively: Provided, that in Courts of Equity any defendant to any cause pending in any such Court may be examined as a witness on the behalf of the plaintiff, or of any co-defendant in any such cause, saving just exceptions; and that any interest which such defendant so to be examined may have in the matters, or in any of the matters in question in the cause, shall not be deemed a just exception to the testimony of such defendant, but shall only be considered as if he has the religious sense of accountability to the Omniscient Being who is invoked by an oath. 1 Greenl. Ev. § 370, and note; 3 Phil. Ev. Cowen & Hill's notes 1503, notes (53), (55). In Maine, a belief in the existence of the Supreme Being is rendered sufficient, by statute, 1833, ch. 58, without any reference to rewards and punishments. Smith v. Coffin, 18 Maine, 157.

In Massachusetts, every person not a believer in any religion shall be required to testify truly under the pains and penalties of perjury; and the evidence of such person's disbelief in the existence of God may be received to affect his credibility as a witness. Genl. Sts. c. 131, § 12.

1 See now Swann v. Wortley, 9 Hare, 460.